Gul v R

An inadvertent failure to follow a procedural step does not automatically make later proceedings invalid. The decisive question is whether Parliament intended non-compliance to have that consequence. Under paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998, the court decides whether an either-way offence is suitable for summary trial. The defendant has a right to make representations on that question, but no right to require summary trial. Where the omission is curable, no application is made, and the case plainly belongs in the Crown Court, the omission does not vitiate a valid indictment or render the trial a nullity.

The appellant was sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 after being charged with conveying controlled drugs into prison. The signed indictment instead contained either-way drug-possession counts. At the plea and case-management hearing, he pleaded guilty to three simple-possession counts and not guilty to three counts of possession with intent to supply.

The Crown Court at Birmingham convicted him of the three supply counts and imposed concurrent sentences of up to four years. On appeal, he contended that the failure to follow paragraph 7 of Schedule 3, including the mode-of-trial procedure, made the subsequent proceedings a nullity. He also renewed an application for leave to appeal against the consecutive four-year sentence.

1. The appeal against conviction was dismissed. The renewed application for leave to appeal against sentence was refused.
2. The court applied the statutory-intention approach to procedural invalidity. A clear statutory requirement can make a later trial a nullity, as the requirement for a signed indictment did in Clarke and McDaid [2008] 1 WLR 338. But a procedural omission is not automatically fatal. The question is whether Parliament intended breach of the particular provision to invalidate the later proceedings.
3. Paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998 gives the court responsibility for deciding whether either-way counts are more suitable for summary trial or trial on indictment. The defendant is entitled to be heard on that issue. He has no right to elect summary trial. A right to elect jury trial arises only if the court first decides that summary trial is more suitable.
4. On the facts, the appellant’s guilty pleas to the lesser counts required the Crown Court to proceed on those counts as though he had been arraigned. The case therefore had to remain in the Crown Court. In substance, the objective of paragraph 7 was not frustrated.
5. In any event, assuming that the court should have invited representations about summary trial, the omission was inadvertent and curable. The appellant could have applied for the issue to be addressed. No application was made, and serious drug-supply offences committed in prison plainly required Crown Court trial. Parliament could not have intended this omission to invalidate the indictment or trial. The earlier technical-nullity approach in Haye [2002] EWCA Crim. 2476 and Gayle [2004] EWCA Crim. 2937 was not followed.
6. A deliberate attempt to evade Schedule 3 and deprive a defendant of a realistically available summary trial might amount to an abuse of process, but that was not this case. The consecutive sentence was not arguably excessive, given that the appellant introduced further drugs into prison on the day he began serving a sentence for a similar offence.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.
• Crown Court at Birmingham The appellant was convicted on 23 February 2012 of three counts of possession of controlled drugs with intent to supply. He received concurrent sentences of four years and two and a half years, to run consecutively to the sentence he had begun serving on 15 April 2011.